BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 256 Hearing Date: June 23, 2015
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|Author: |Jones-Sawyer |
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|Version: |June 16, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Falsifying Evidence
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation:AB 1993 (Romero), Chapter 620, Statutes of
2000
Support: American Civil Liberties Union; American Friends
Service Committee; California District Attorneys
Association; California Police Chiefs Association,
Inc.; California Public Defenders Association; Ella
Baker Center for Human Rights; Los Angeles County
District Attorney's Office
Opposition:None known
Assembly Floor Vote: 79 - 0
PURPOSE
The purpose of this bill is to expand the prohibition against
knowingly, willfully, and intentionally tampering with evidence
to include digital images and video recordings.
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Existing law provides that every peace officer who files any
report with the agency which employs him or her regarding the
commission of any crime or any investigation of any crime, if he
or she knowingly and intentionally makes any statement regarding
any material matter in the report which the officer knows to be
false, is guilty of filing a false report punishable by
imprisonment in the county jail for up to one year, or in the
state prison for one, two, or three
years. (Penal Code §118.1.)
Existing law provides that every person who, knowing that any
book, paper, record, instrument in writing, or other matter or
thing, is about to be produced in evidence upon any trial,
inquiry, or investigation whatever, authorized by law, willfully
destroys or conceals the same, with intent thereby to prevent it
from being produced, is guilty of a misdemeanor (Penal Code
§135.)
This bill additionally specifies that the prohibition on
destroying or concealing evidence applies to a digital image or
a video recording owned by another and applies also if it was
erased with the intent to prevent it or its content from being
produced.
Existing law provides that every person who reports to any peace
officer, or district attorney, that a felony or misdemeanor has
been committed, knowing the report to be false, is guilty of a
misdemeanor. (Penal Code §148.5 (a).)
Existing law makes it a misdemeanor for a person to knowingly,
willfully, and intentionally alter, modify, plant, place,
manufacture, conceal, or move any physical matter, with specific
intent that the action will result in a person being charged
with a crime, or with the specific intent that the physical
matter be will be wrongfully produced as genuine or true upon
any trial, proceeding or inquiry. (Penal Code, §141(a).)
This bill specifies that the prohibition against a peace officer
knowingly, willfully and intentionally tampering with physical
evidence to charge someone with a crime or to produce as true
evidence at trial includes tampering with a digital image or
video recording.
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Existing law makes it a felony for a peace officer to knowingly,
willfully, and intentionally alter, modify, plant, place,
manufacture, conceal, or move any physical matter, with specific
intent that the action will result in a person being charged
with a crime, or with the specific intent that the physical
matter be will be wrongfully produced as genuine or true upon
any trial, proceeding or inquiry. (Penal Code §141(b).)
This bill additionally makes it a felony for a peace officer to
knowingly, willfully, intentionally and wrongfully tamper with a
digital image, or video recording with the specific intent that
the physical matter, digital image or video recording will be
concealed or destroyed or fraudulently represented as the
original evidence upon a trial, proceeding, or inquiry.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
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v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In 2000, Assembly Bill 1993(Romero) was signed into law
making it a felony for a peace officer to knowingly
alter, place, or move physical matter with the specific
intent to wrongfully charge another person for a crime.
This Romero bill was inspired by the Los Angeles Police
Department Rampart scandal.
However, with technological advancements, this law has
not been updated to accommodate these developments.
Personal mobile phones and other electronic devices now
allow individuals to capture images and videos. This
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recording capability has provided the public an
opportunity to monitor instances of police misconduct.
Throughout the state, there have been several instances
of police misconduct documented by civilians on their
personal mobile devices. In many instances, peace
officers have temporarily confiscated person's mobile
devices as possible evidence, only to return the mobile
devices with material digital images and/or videos
deleted or destroyed.
For example, in May 2013, police in Bakersfield
temporarily confiscated the mobile devices of two
witnesses who recorded police beating a 33-year-old
father of four. The victim of the police beating
subsequently died. The police returned the devices
with the video of the incident deleted.
Increasingly, as the public captures questionable
police practices on video, it is critical that we send
a message that altering or deleting these videos will
not be tolerated. AB 256 ensures the law will not be
misinterpreted by specifically clarifying that "any
physical matter" includes digital images and video
recordings.
2. Updating the Law to Include Video Recordings
Existing law prohibits any individual from willfully destroying
or concealing, knowing it will be evidence in a case, with the
intent of keeping it from being produced in that case. It is
generally a misdemeanor but is a felony if a peace officer
knowingly, willfully and intentionally alters, modifies, plants,
places, manufacturers conceals or moves and physical matter with
the intent that the action will result in a person being charged
with a crime or that he evidence will be represented as original
in a trial. This bill updates these sections to include a
digital image or video recording
Several U.S. Courts of Appeals have specifically recognized a
First Amendment right to record the police and/or other public
officials in a public place. (See Glik v. Cunniffe (1st Cir.
2011) 655 F.3d 78, 85 ("[A] citizen's right to film government
officials, including law enforcement officers, in the discharge
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of their duties in a public space is a basic, vital, and
well-established liberty safeguarded by the First Amendment."];
ACLU of Illinios v. Alvarez (7th. Cir. 2012) 679 F.3d 583, 595
["The act of making an audio or audiovisual recording is
necessarily included within the First Amendment's guarantee of
speech and press rights as a corollary of the right to
disseminate the resulting recording."]; Fordyce v. City of
Seattle (9th Cir. 1995) 55 F.3d 436, 438 (assuming a First
Amendment right to record the police); and Smith v. City of
Cumming (11th Cir. 2000) 212 F.3d 1332, 1333 ["The First
Amendment protects the right to gather information about what
public officials do on public property, and specifically, a
right to record matters of public interest."].)
In California there is no law preventing a civilian from openly
recording a police officer carrying out his or her duties in a
public place. However, a person does not have the right to
interfere with the police when recording. If an individual does
interfere with an officer doing his or her work, that person may
be charged with obstruction of justice. In this day and age
where many cell phones have cameras and video recording
capabilities, recording an interaction between police and a
member of the public is becoming more and more common. There
have been reported incidents of police officers either trying to
arrest individuals or destroy photographs or recordings when the
officers realize they are being recorded. This bill would
subject an officer to felony prosecution for tampering with or
confiscating such photographs or video recordings.
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